Merger clearance reform: ACCC transitional guidelines released

Joe McQuillen, Helena Kanton and Margaret Cai unpack the ACCC’s guidelines on the transition to the new merger clearance regime.

The ACCC today released guidelines on the transition to the new merger clearance regime.

While the new mandatory merger clearance regime doesn’t officially commence until 1 January 2026, it’s clear from the guidelines that voluntarily seeking ACCC clearance under the new regime will be a better option for many transactions signed in the second half of this year – see key takeaways below.

The ACCC has also indicated that it will release additional guidelines this month on (1) the process for seeking clearance under the new regime, and (2) how the ACCC will assess whether acquisitions should be cleared or blocked under the new regime.

Updated details on the notification thresholds, filing fees, and filing forms for the new regime are also expected to be released for public consultation this quarter.

Background

On 1 January 2026, ACCC clearance will become mandatory for certain acquisitions meeting monetary thresholds (or other specific industry thresholds).  The new merger clearance regime will replace the existing voluntary informal clearance and the formal merger authorisation options with a single administrative clearance regime that will deem acquisitions meeting the notification thresholds as void unless they receive ACCC clearance, and introduces statutory timeframes, prescribed filing requirements, and changes the legal test and threshold for ACCC clearance.

Under the transitional arrangements, acquisitions that receive ACCC clearance or authorisation under the existing processes between 1 July 2025 and 31 December 2025 will be exempt from the new merger clearance regime, provided they complete within 12 months of receiving ACCC clearance.  Any other acquisitions put into effect after 1 January 2026 (even if signed before that date) will be subject to the new merger clearance regime and will need ACCC clearance (or a waiver) if the notification thresholds are satisfied.

See more details about the reforms here.

Key takeaways from ACCC transitional guidelines

1. October 2025 deadline for seeking informal clearance. The ACCC has said that applications for informal clearance received ‘after early October’ are at risk of not receiving a decision before 31 December 2025 (when the existing informal review process ends).  This is the case even if there are limited or no competition concerns with the acquisition, with the ACCC expressly calling out that it might see a large volume of requests in this period. We agree.
2. No clear transition for acquisitions that need to be re-notified under new regime where no decision has been made under existing processes before 31 December 2025.  If the ACCC doesn’t make a decision on an informal clearance or merger authorisation matter before 31 December 2025, the review will end and be recorded as having ‘no decision’ on the public registers.  If the acquisition satisfies the notification thresholds, then the parties will need to re-apply for clearance under the new regime.  The ACCC has said that (for informal clearance) “where appropriate, we will try to consider the acquisition through the new process more quickly, reflecting work already undertaken during review” and (for merger authorisation) “it may be possible for the ACCC to assess the acquisition through the new merger regime reflecting work already undertaken, noting that there is a different test and process that would be applied”.   However, no further details have been provided about the practicalities of how acquisitions that need to be re-notified to the ACCC would be treated,  in terms of matters such as the information requirements and the statutory timeframes, under the new regime.
3. Parties can request ‘updated informal view’ for transactions that received informal before 1 July 2025.  An acquisition will only be exempt from the new merger clearance regime if ACCC clearance or authorisation was obtained between 1 July 2025 – 31 December 2025.For any ACCC clearance or authorisation before 1 July 2025, parties can request an updated review from the ACCC if the acquisition is not likely to complete before 1 January 2026 (such that an exemption from the new merger clearance regime would be needed if the notification thresholds are satisfied).  Any requests for an updated review will need to be made as soon as possible after 1 July 2025 and before the October 2025 deadline (as otherwise the request may not be finished); and will need to include an update on any changes relevant to the acquisition (e.g., changes in the market and updated market shares).Where there are no material changes, the ACCC’s usual approach will be to issue a new clearance letter that provides an exemption to the new merger clearance regime.  If there have been material changes, the ACCC may commence a follow up public review (although this might have a shortened timeline given the ACCC’s likely familiarity with matter).
4. Confidential preassessment provided between 1 July 2025 – 31 December 2025 should provide exemption to new merger clearance regime. The exemption to the new merger clearance regime for acquisitions that received ACCC clearance or authorisation only applies where the ACCC has provided written confirmation that it does not intend “to take action under section 50 of the CCA”.  However, the ACCC’s standard wording when it issues confidential pre-assessment letters to date has been to state that it “does not intend to conduct a public review”.  However, the transition guidelines state that after 1 July 2025, the ACCC will issue confidential pre-clearance letters that comply with the requirements of section 189 of the CCA (which would therefore provide an exemption to the new merger clearance regime).